Freedom of Information Act (Federal) Research Guide

This guide discusses how to use the federal Freedom of Information Act , 5 U.S.C. 552, to obtain records from federal government agencies when those records are not published in the Federal Register or distributed by the Government Printing Office.

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Overview of the Federal Freedom of Information Act

1. What Information Is Available Under the Freedom of Information Act?

The federal Freedom of Information Act, 5 U.S.C. § 552, which was originally enacted in 1966, provides for public access to many federal executive branch agency records. For purposes of the FOIA, the term ,'agency' . . . includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. § 552(f)(1). FOIA cannot be used to obtain records of Congress or the federal judiciary. It also cannot be used to obtain state records; each state has its own freedom of information statute.

2. Methods of Information Disclosure Under FOIA

There are three major methods of information disclosure under the FOIA, one of them being the formal FOIA equest. All three distribution systems are explained below, since you will not need to make a formal request if the information you need has been made available in another manner.

A. PUBLICATION IN THE FEDERAL REGISTER

FOIA requires that agency regulations and procedural rules be automatically published in theFederal Register.5 U.S.C. § 552(a)(1). After their initial appearance in the Federal Register, these rules are also published in a subject arrangement called the Code of Federal Regulations. Note that although the Code of Federal Regulations contains only regulations, the Federal Register includes many other types of agency information, including information not statutorily required to be published there.

You do not need to file a FOIA request to obtain information published in the Federal Register orCode of Federal Regulations, because you can search them yourself. It is therefore a good idea to search the Federal Register and/or the Code of Federal Regulations for agency information before you go to the trouble of making a FOIA request. For advice on searching the Federal Register and Code of Federal Regulations, see the Library's Administrative Law Research Guide.

B. AGENCY READING ROOMS

FOIA requires that certain other documents be made available for public inspection and copying in agency reading rooms unless they are promptly published and offered for sale. These documents include (1) final opinions and orders in agency adjudications, (2) policy statements and interpretations adopted by an agency but not published in the Federal Register, (3) administrative staff manuals and instructions to staff that affect members of the public, and (4) copies of records that have previously been furnished in response to a FOIA request and which the agency has reason to believe are likely to be requested again in the future. 5 U.S.C. § 552(a)(2).

Before you go to the trouble of making a FOIA request for agency information, it is a good idea to check the agency's reading room to see if the information is available without a request. Most federal agencies now make their reading room materials available electronically on their web sites. Addresses for an agency's conventional reading rooms and links to its electronic reading rooms can be found on the agency's website. If you think that legally required materials are missing from an agency's electronic reading room, you should contact the agency's FOIA officer for assistance:

C. FOIA REQUESTS

In the case of information not made available under the two provisions above, ,each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. 5 U.S.C. § 552(a)(3). You will have to make a written request for this information, a process which is described below. Before you do, however, you should consider whether the information you are seeking is exempt from disclosure.

3. FOIA Exemptions

There are nine categories of documents that are exempt from disclosure under FOIA (5 U.S.C. § 552(b)). Briefly, these nine categories are:

classified documents;

documents related solely to the internal personnel rules and practices of an agency;

documents specifically exempted from disclosure by another statute;

trade secrets and privileged commercial or financial information;

inter-agency or intra-agency memos or letters that would be considered "privileged" for litigation purposes;

personnel and medical files (the "personal privacy" exemption);

records compiled for law enforcement purposes (but these are only exempt where they could reasonably be expected to interfere with enforcement proceedings, or would deprive a person of the right to a fair trial, or could reasonably be expected to endanger someone's life or physical safety, etc.);

reports made for regulatory purposes by financial institutions to the government; and